Catherine Mhiyangwa and Hith Matashu v Harold Sowa and Christine Sowa and City of Bulawayo and Sheriff of the High Court N.O

The plaintiffs (Catherine Mhiyangwa and Hith Matashu) were tenants of the defendants (Harold and Christine Sowa) at house No. J4 Mzilikazi Township, Bulawayo. In 2017, the Sowas offered to sell the house for $14,000. The plaintiffs deposited $6,000 initially, with the balance to be paid later. The parties initially agreed to reduce the agreement to writing after payment of the deposit, but this was postponed to after payment of $10,000, and ultimately no written agreement was ever signed. Disputes arose over the currency to be used for payment - whether USD or RTGS (Zimbabwe dollars). The plaintiffs eventually deposited a total of $14,000 in RTGS into the defendants' bank account. The defendants refused to accept the balance of $8,000 paid in RTGS as they had demanded USD cash payment. The defendants refunded $13,200 to the plaintiffs' former lawyers. The plaintiffs stopped paying rent from March 2019, believing they had purchased the house. Two consolidated cases were brought: HC 3031/18 by the plaintiffs seeking to compel transfer, and HC 1901/19 by the defendants claiming arrear rentals and eviction.

• Whether there was a valid and binding agreement of sale between the parties
• Whether the plaintiffs complied with the terms of any alleged agreement
• Whether an order for specific performance should be granted
• Whether the plaintiffs were liable to pay rentals including arrear rentals from March 2019
• Whether the defendants were entitled to evict the plaintiffs from the property

1. The plaintiffs' claim is dismissed. 2. The plaintiffs are ordered to pay to the 1st and 2nd defendants arrear rent and rentals at the rate of RTGS 1,200.00 for the months of March 2019, April 2019, May 2019, June 2019, July 2019 and August 2019. 3. If the plaintiffs fail to pay the said rentals within 10 days of this order being made, they should vacate house No. J4 Mzilikazi, Bulawayo, failing which the Sheriff of Zimbabwe or his lawful deputy is authorised to evict them. 4. The plaintiffs pay costs of suit on an attorney and client's scale.

For a valid contract of sale to exist, there must be consensus ad idem - a true meeting of minds between the parties on all material terms. All essential terms of a contract must be agreed upon, including in the case of sale of property: the purchase price (including the specific currency), the mode of payment, and the timing of payments. Where parties fail to agree on material terms such as the currency to be used for payment and the conditions of payment, and where there is no coincidence of will between the parties, no binding contract comes into existence. The acceptance of a deposit does not in itself create a binding contract if other material terms remain unresolved. Mere commencement of performance without agreement on essential terms does not create a binding obligation.

The court observed that the relationship between the parties was initially cordial and that the situation deteriorated due to Zimbabwe's currency fluctuations and changing monetary policies, which made it difficult for the parties to maintain clarity on what currency had been agreed upon. The court noted with apparent disapproval the conduct of the plaintiffs in depositing money into the defendants' bank account without their knowledge or consent, describing this as money being 'shoved' or 'bafuqela' (forced) into an old account. The court also commented that the arrangement was 'even much less of a gentlemen's agreement' and criticized the informal nature of the dealings where 'both parties were deciding separately, what to do next each time money was paid or had to be paid.' The judgment suggests that parties should seek proper legal advice before commencing performance and should insist on written agreements to avoid such disputes.

This case reinforces fundamental principles of contract law in Zimbabwean jurisprudence, particularly the requirement of consensus ad idem (meeting of minds) for a valid contract. It emphasizes that all material terms of an agreement must be agreed upon, especially in contracts for the sale of immovable property. The case demonstrates that even where parties have commenced performance (partial payment), if essential terms such as the currency of payment and mode of payment remain in dispute, no binding contract exists. The judgment is significant in the context of Zimbabwe's currency instability and the importance of clarity regarding which currency applies to contractual obligations. It serves as a cautionary tale about the dangers of proceeding with transactions without reducing agreements to writing and ensuring all material terms are definitively agreed upon.